C.P. Sen, J.
1. This order shall also dispose of Misc. Criminal Case No. 536 of 1982, Aeltemesh Rein and Anr. v. Steel Authority of India Ltd. as both the cases arise out of the same set of facts. For brevity's sake, Steel Authority of India Ltd. is being described as SAIL. This is an application by SAIL under Section 482 of the Criminal P.C. 1973, for quashing the order of the Additional Sessions Judge, Durg, in Criminal Revision No. 90/1980 dated 30.1.1981 discharging Aeltemesh Rein and M.M. Rein under Section 245(2) of the Code for the offence under Section 454 I.P.C. The other application is under Section 482 of the Code for. quashing the prosecution of Aeltemesh Rein and Smt. Saiyada Mosarrat under Section 11 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Act).
2. Aeltemesh Rein is the son of M.M. Rein and Smt. Saiyada Mosarrat and they are living together. M.M. Rein is an employee in the Bhilai Steel Plant run by SAIL. His wife Smt. Saiyada Mosarrat was given a licence for plot No. 2, measuring 1794 square feet in Sector No. 1, Bhilai, for running a cycle rickshaw garage and repair shop. It appears that Smt. Saiyada Mosarrat erected a structure over the plot and was running her shop there. However, her licence was cancelled for breach of license conditions and proceedings started for her eviction under the Act. By order dated 26.4.1974 Smt. Saiyada and another were directed to vacate the plot by the Estate Officer. Appeal was preferred before the District Judge which was dismissed. A writ petition to this Court and further special leave petition to the Supreme Court also failed. Estate Officer took possession on 30.9.1975 of the land and structure. In the meanwhile, Smt. Seiyada filed civil suit challenging the order of eviction by the Estate Officer. She also applied for temporary injunction which was refused and the order maintained in appeal by the Addl. District Judge and in revision by this Court. Then Special Leave Petition No. 4611/77 was filed in the Supreme Court and Smt. Saiyada was again placed in possession of the prentises on 24.11.1977. But the Special Leave Petition was ultimately dismissed and the Estate Officer retook possession on 22.3.1978 preparing an inventory of the articles found in the premises. Smt. Saiyada filed Special Leave Petition No. 3615/78 in the Supreme Court and on 25.4.1978 the Court directed that all the articles found in the premises be returned to her, which has been complied with. But Aeltemesh Rein filed criminal case against some of the employees of SAIL alleging that some of the articles have not been returned and misappropriated by them. The case has been registered under Sections 218 and Section 406 read with Section 34 I.P.C. and confirmed by this Court in Misc. Cr. Case No. 69/80. An appeal to the Supreme Court by the SAIL is pending.
3. On 11.5.1978 SAIL filed complaint case No. 1223/78 under Section 11 of the Act alleging that on the night of 6.5.1978 Aeltemesh, his parents and servant Raju, have after being evicted, illegally retaken possession of the premises by breaking open the locks. The case has been registered only against Aeltemesh and his mother. The SAIL filed another complaint case No. 1409/78 on 23.12.1978 against the above four persons under Section 454 I.P.C. on the allegations that Aeltemesh, his father and servant Raju have illegally retaken possession on the night of 6.5.1978. The case was registered only against the last three but Raju was given up and discharged later on. In Cr. Case No. 1409/78 Aeltemesh filed an application under Section 245(2) of the Code for dispharge from the case as the charge was groundless and the second complaint on the same facts is barred in view of Section 26 of the M.P. General Clauses Act. The learned Magistrate rejected the application saying that since the ingredients of the two offences are different, Section 26 is not attracted and that it cannot be said that charges are groundless.
In revision, the Addl. Sessions Judge discharged Aeltemesh Rein and his father on 30.1.1981 by holding that though there is no bar for simultaneous prosecution but no offence of criminal trespass as laid down in Section 441 I.P.C. is made out as it has not been shown that by their action Reins, have insulted, intimidated or annoyed the complainant. Besides, their action is also protected as the Reins have acted under a bona fide claim of right as the structure belonged to them and they had a right to enter into it and so the trespass is of a civil nature. Against this order, Misc. Cr. Case No. 918/81 has been filed by the SAIL. Armed with the impugned order Reins have filed an application on 15.4.1981 under Section 245(2) of the Code in the earlier complaint case under Section 11 of the Act for discharge as the eviction order without notice to Aeltemesh is bad, besides they have acted bona fide in entering into their structure. The learned trial Magistrate rejected the application saying that it being a summons case, Section 245(2) is not applicable and there can be no discharge without recording evidence in a summons case. The order has been maintained by the Sessions Judge in revision. The Reins have filed Misc. Cr. Case No. 536/82 for quashing of the prosecution under Section 11 of the Act, 4. In its application the SAIL contends that the revisional Court erred in holding that no criminal trespass is committed by the Reins and in any case there was no justification for holding so at the preliminary stage before recording of the evidence. In their application Reins contended that the prosecution of Smt. Saiyada is abuse of the process of the Court, charge against her is vague and in the other complaint it has been specifically averred that Aeltemesh, his father and servant alone have illegally re-entered and not Smt. Saiyada, Since there is no order for eviction from the structure, re-entry therein is no offence as they have acted bona fide.
5. During arguments Shri Aeltemesh Rein challenged the vires of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, by submitting that the Act covers land including agricultural land which being a State subject in entry No. 18 of the State list, the Parliament has no power to legislate so far as land is concerned. Further under Article 300A of the Constitution, no person shall be deprived of his property save by authority of law. Here the eviction order is from the land only but the SAIL has illegally taken possession of the structure of Smt. Saiyada and appropriated the same, thereby depriving her of her property without authority of law. Besides, the Public Premises Act is a Special Act laying down that the procedure for inquiries is to be followed as per the Rules to be framed but so far no rules are framed and as such procedure in Code of Criminal Procedure cannot apply and the objection regarding tenability of the second complaint cannot be overruled by saying that Section 245(2) of the Code does not apply to summons cases. The Court ought to have applied the principles of natural justice. It is also reiterated that Section 26 of the General Clauses Act bars the second complaint. Shri Sadasivan Nair, learned Counsel for the SAIL objected that the question about the vires of the Act and about deprivation of the property cannot be allowed to be raised for the first time during arguments. Even otherwise the questions raised are misconceived and of no substance.
6. Misc. Cr. Case No. 918/81 is first taken up. The order of the Addl. Sessions Judge discharging Aeltemesh Rein and his father in revision is on the ground that it is not a criminal trespass but a civil trespass and the Reins have acted under bona fide claim of right in re-entering into their structure, the order of eviction being from the land and not from the structure and ingredients of Section 441 I.P.C. are not made out. It is true that the Privy Council in Sinnasamy v. State (1951) 52 Cri LJ 173 has held that entry upon land made under a bona fide claim of right, however ill-founded in law the claim may be, does not become criminal merely because a foreseen consequence is annoyance to the occupant. It further said that to establish criminal trespass the prosecution must prove that real and dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the occupant, and that any claim of right was mere cloak to cover the real intent, or at any rate, constituted no more than a subsidiary intent. But all these matters can only be considered after evidence is recorded in the case and not at the preliminary stage. Recently, the Supreme Court in State of Punjab v. Devinder Kumar : 1983CriLJ980 has held as under:
In the instant case the High Court committed a serious error in these cases in quashing the criminal proceedings in different Magistrates' courts at a premature stage in exercise of its extraordinary jurisdiction under Section 482, Cr.P.C. These are not cases where it can be said that there is no legal evidence at all in support of the prosecution. The prosecution has still to lead its evidence. It is neither expedient nor possible to arrive at a conclusion at this stage on the guilt or innocence of the accused on the material before the Court. While there is no doubt that the onus of proving the case is on the prosecution, it is equally clear that the prosecution should have sufficient opportunity to adduce all available evidence.
So the prosecution has to be given chance to prove its case and then opportunity given to the accused to rebut the charge and the complaint cannot be rejected at the preliminary stage.
7. It is also true that Smt. Saiyada was a licencee for the plot and she had raised a structure thereon and the eviction order is from the plot. But by virtue of such eviction order, the SAIL is entitled to take possession of the plot and remove the structure. Smt. Saiyada can only claim back the structure or its price and nothing more. Whether re-entry was justified or not can be seen in the trial. The Supreme Court in Manipur Administration v. Bira Singh 0065/1964 : 7SCR123 has held that both in the case of Article 20(2) of the Constitution as well as under Section 26 of the General Clauses Act, to operate as a bar, the second prosecution and the consequent punishment thereunder must be for the 'same offence' i.e. an offence whose ingredients are the same. Here the ingredients of offences under Section 454, I.P.C. and under Section 11 of the Public Premises (Eviction) Act are quite different. In the first case, the entry must be to commit offence or cause insult, intimidation or to annoy the occupant and in the second case there is re-entry after having been evicted from a public premises under the Act. So the order in Cr. Revision No. 90/80 has to be set aside.
8. Misc. Cr. Case No. 536/82 is now taken up. The Public Premises (Eviction of Unauthorised Occupants) Act covers land including agricultural land but this pertains to Government land and not to other lands. The Supreme Court in Hari Singh v. Military Estate Officer Delhi : 1SCR515 has held that the Act applies to agricultural land also. In view of entry No. 32 of the Union list, the Parliament is competent to legislate about agricultural land also where the land belongs to the Union, which cannot be subject to the legislation of the State under entry No. 18 of the State list. In Hari Singh v. Military Estate Officer AIR 1964 Punj 304 the Act has been held to be intra vires and the decision has been affirmed by the Supreme Court in the aforesaid case. As mentioned earlier, there is no question of deprivation of any property of Smt, Saiyada by evicting her from the plot. She failed to remove the structure after the eviction order was passed under the Act and so she has been evicted. She can at the most claim back her structure or its prifie. She has no right of re-entry as such after she was evicted. She ought to have removed her structure after the eviction order was passed. The Act does not authorize appropriation of her structure without paying its price. It only authorises eviction from the premises. Whether the eviction was justified or not will be seen in the trial.
It is true that in the second complaint under Section 454, I.P.C. there is clear averment that Aeltemesh Rein, his father and servant re-entered by breaking open the lock after Smt. Saiyada was evicted, which means she was not physically present while re-entry was made. But.
9. Accordingly, Misc. Cr. Case No. 918/81 is allowed and Misc. Cr. Case No. 536/81 is dismissed. The order of the Addl. Sessions Judge discharging Aeltemesh Rein and M.M. Rein is set aside. Cases are remanded back to the trial Magistrate for proceeding with them in accordance with law. Parties are directed to appear before the trial Magistrate on 26.9.1983.